Nigeria Customs Service & Anor V. Sunday Osaro Bazuaye (2005)

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M. ABBA AJI, J.C.A.

This appeal is against the judgment of the Federal High Court, Edo State, sitting in Benin City, presided over by Hon. Justice I.N. Auta, delivered on the 13th day of November, 2001.

The respondent herein was the plaintiff before the trial court. He was employed by the Federal Ministry of Works and Housing on 21st March, 1971. His appointment was confirmed and as was the practice, gazetted. He enjoyed rapid promotion so much so that as at 1988, he was transferred to the customs department and by the 1988 Civil Service Reform, he now became a permanent staff of the Custom Service.

As at 1989, the respondent’s duty post was Tin Can Island Port, Lagos, where he was a senior accountant. Sometimes in 1989, a fraud was perpetrated in Tin Can island Port, Lagos. Two Union Bank Cheques No. 784216 for N64,456.36k and No. 784215 for N4,511.95k issued by Pfizer Products to Panalpina World Transport, were stolen at the Murtala Mohammed Airport. The said cheques were later found to have been used at Tin Can Island Port to pass for an entry for motor vehicle. The cheques were alleged to have passed through the table of the respondent and his two assistants.

Consequently, the respondent was accused of aiding and abatting the Commission of the fraud and thereby causing the Federal Government the loss of N64,456.36K.

The respondent denied the allegation and stated that during the period the fraud was alleged to have occurred he was ill having obtained permission from his officer to be absent from work as he and his immediate family had been afflicted by small pox. The appellants were not satisfied by the respondent’s explanation and by a letter dated the 26th September, 1995, the respondent was dismissed from the services of the Nigeria Customs Service with effect from 27th April, 1993.

Apparently dissatisfied with his dismissal from service, the respondent instituted this action before the Federal High Court vide a writ of summons dated the 16th day of April, 1996, and claimed as per paragraph 22 of amended statement of claim the following reliefs:-

(a) A declaration that the alleged or purported dismissal of the plaintiff from the Nigeria Customs Service is involuntary, illegal, null, void and of no effect whatsoever.

(b) A declaration that the plaintiff is still in the employment of the Nigerian Customs Service.

(c) An injunction restraining the defendants from interfering with the plaintiff’s performance of his duties as an Assistant Chief Accountant of Customs.

(d) An Order to re-instate plaintiff to his status as a Civil Servant, and as an Assistant Chief accountant of customs in such a manner that all outstanding salaries, entitlements and promotions which is due or might have accrued to the plaintiff now or during the period of the alleged or purported dismissal be given to him.

(e) In the alternative, the plaintiff shall claim the sum of fifty million Naira (N50,000,000.00K) as compensation, special and general damages for unlawful and wrongful dismissal from service by the defendants.”

The parties filed and exchanged pleadings. The case eventually went to trial. The respondent gave evidence and was cross-examined. The appellant somehow abandoned the case and thus did not call any evidence. In a considered judgment delivered on the 21st of November, 2001, the learned trial Judge Auta, J. granted all the reliefs of the respondent. This is what the trial court said while giving judgment to the respondent:-

“I have already considered in the body of my judgment, the fact that the employment of the plaintiff has statutory flavour and as stated in the case of U.N.T.H.M.B. v. Nnoli (1992) 6 NWLR (Pt.250) page 752, “where the act relied upon for the dismissal or termination of an employee is a contravention of an enacting statutory provision, the reinstatement of the employee (bearing legal obstacles intervening between the period of purported dismissal and the date of judgment) is the only remedy”. In this case, the plaintiff sought the following reliefs from the court, like a declaration that his dismissal from service of the defendant was invalid, and was entitled to continue in his employment. The plaintiff also promptly protested his dismissal from service vide exhibit “E and H”. This court now has declared that the dismissal was null and void. That means that he was never dismissed from the service, I find also that there is nothing (before this court) legally standing in his way to have his job or office back with the attendant rights, privileges and benefits. I hereby enter judgment in favour of the plaintiff, and grant reliefs a-d of the statement of claim.”